United States District Court, E.D. California
L.M. DANIELS, II. Plaintiff,
v.
F.C.U. RAPE UNIT, et.al., Defendants.
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A
DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATION
RECOMMENDING PLAINTIFF'S MOTION TO PROCEED IN FORMA
PAUPERIS BE DENIED [ECF No. 2]
Plaintiff
L.M. Daniels, II. is appearing pro se in this civil
rights action pursuant to 42 U.S.C. § 1983.
Plaintiff
filed the instant action on November 25, 2019, along with a
motion to proceed in forma pauperis.[1] (ECF Nos. 1, 2.)
I.
DISCUSSION
The
Prison Litigation Reform Act of 1995 (PLRA) was enacted
“to curb frivolous prisoner complaints and
appeals.” Silva v. Di Vittorio, 658 F.3d 1090,
1099-1100 (9th Cir. 2011). Pursuant to the PLRA, the in forma
pauperis statue was amended to include section 1915(g), a
non-merits related screening device which precludes prisoners
with three or more “strikes” from proceeding in
forma pauperis unless they are under imminent danger of
serious physical injury. 28 U.S.C. § 1915(g);
Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir.
2007). The statute provides that “[i]n no event shall a
prisoner bring a civil action … under this section if
the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g).
A
review of the actions filed by Plaintiff reveals that he is
subject to 28 U.S.C. § 1915(g) and is precluded from
proceeding in forma pauperis unless Plaintiff, was, at the
time the complaint was filed, under imminent danger of
serious physical injury. The Court takes judicial notice of
the following cases: (1) Daniels v. Piearcy, et.al.,
Case No. 1:10-cv-00630-JLT (E.D. Cal.) (dismissed on February
24, 2011, for failure to state a claim); (2) Daniels v.
Watson, Case No. 1:09-cv-02033-MJS (E.D. Cal.)
(dismissed on November 3, 2011, for failure to state a claim
and for failure to comply with the Court's orders); (3)
Daniels v. Fresno County Jail, et al., Case No.
1:15-cv-00960-BAM (E.D. Cal.) (dismissed on October 3, 2016,
for failure to state a claim and for failure to comply with
the Court's orders).[2], [3]
The
issue now becomes whether Plaintiff has met the imminent
danger exception, which requires Plaintiff to show that he is
under (1) imminent danger of (2) serious physical injury and
which turns on the conditions he faced at the time he filed
his complaint on November 25, 2019. Andrews, 493
F.3d at 1053-1056. Conditions which posed imminent danger to
Plaintiff at some earlier time are immaterial, as are any
subsequent conditions. Id. at 1053. While the injury
is merely procedural rather than a merits-based review of the
claims, the allegations of imminent danger must still be
plausible. Id. at 1055.
Here,
the Court finds that Plaintiff's allegations fail to
demonstrate imminent danger of serious physical injury at the
time of filing. Plaintiff contends that on November 12, 2019,
between 2:00 and 5:00 p.m., he woke from sleeping and was
assaulted with a foreign object to the point of
“bloodshed” by another inmate. Plaintiff contends
that officer Vasquez witnessed the incident. Plaintiff was
not provided any medical attention and no investigation was
conducted. Plaintiff's allegations which are based on an
isolated incident which took place on November 12, 2019,
prior to filing of the instant complaint do not demonstrate
imminent danger of serious physical injury. In addition,
there are no facts to support that Plaintiff suffered from an
ongoing pattern of misconduct. Accordingly, the imminent
danger exception to § 1915(g)'s three-strikes
provision cannot and does not apply here. See
Andrews, 493 F.3d at 1055; see also Medberry v.
Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (finding
failure to protect allegations against prison officials who
put an inmate convicted of sexual battery in general
population failed to meet imminent danger standard because
the threat had ceased prior to filing the complaint and there
were no allegations that plaintiff was in imminent danger of
serious physical injury at the time he filed his complaint
that that he was in jeopardy of any ongoing danger):
Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.
1998) (“Allegations that the prisoner faced imminent
danger in the past are insufficient to trigger this exception
to § 1915(g) and authorize the prisoner to pay the
filing fee on the installment plan.”).
II.
CONCLUSION
AND RECOMMENDATIONS
Accordingly,
the Clerk of the Court is HEREBY DIRECTED to randomly assign
a District Judge to this action.
Further,
for the reasons explained above, it is HEREBY RECOMMENDED
that:
1. Plaintiff's motion to proceed in forma pauperis (ECF
No. 2.) be denied; and
2. Plaintiff be required to pay the $400.00 filing fee within
thirty (30) days of service of the Court's order adopting
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